In Massachusetts “assault and battery” is the intentional and unjustified use of force upon t another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another. An “assault” is an attempt or offer to do bodily harm to another by force or violence, or simply an attempt to commit a battery. Depending on the facts of the case, self-defense or defense of another are often a viable defenses to a charge of assault and battery. Once a claim of self-defense or defense of another is viably presented, the burden shifts to the Commonwealth to disprove such affirmative defense.

In Massachusetts, the charge of unarmed robbery must be litigated in the Superior Court because it is a felony. A felony is any charge in which a potential penalty is a sentence to state prison. In the event that the District Attorney's Office decided to keep the case in district court the defendant may be charged with a misdemeanor crime such as breaking and entering in the the nighttime. However, the District Attorney's office has the final say on what charges a defendant will face.

Based on the facts in this case it appears that attacking the identification of the defendant may be a viable area for the defense to pursue. Any time that a suspect is not apprehended at the scene of an incident attacking the identification procedure is always a fertile area for the defense. In these types of cases, filing appropriate pre-trial motions for disclosure of identification procedures are critical.

The Essex County District Attorney's Office moved to have Holden held without bail because he violated a term of pre-trial probation on his previous arrest by driving. A Salem District Court Judge denied this request but imposed $5,000.00 cash bail. Holden will be held in the Middleton Jail until he posts bail. He is due in court later this month for a pre-trial conference.

In Massachusetts, in order for the Commonwealth to prove that a defendant was drunk driving they must show that the person was driving a motor vehicle, on a public way and was under the influence. A commonly litigated issue is whether the defendant was under the influence. In order to prove this the District Attorney's Office often relies on the observations of the police officers, the field sobriety tests, a breathalyzer (if any) and any statements of the defendant.
In order to counter the testimony of the officers, a good strategy is to emphasize all of the defendant's behavior that is consistent with sobriety. For example, illustrating that the defendant had not problem producing his or her license, no problem getting out of the car and could follow directions are fertile areas of cross examination.

The witness testified that after he left his house to buy cigarettes at the store, Ehlert and a co-defendant dragged him into a Marblehead cemetery and beat him. Defense counsel highlighted inconsistencies between the teenager's initial statement to the police and his "official" version given nine days after the incident. Despite pressing by counsel, the witness maintained that the relationship between Ehlert and himself was limited to interaction at the town's skateboard park with mutual friends. Ehlert and eighteen year old Michael "Tampa" Leoni are facing charges that include robbery, assault and battery, and witness intimidation. Ehlert's twenty-two year old brother is facing a charge of witness intimidation. It is alleged that the made phone calls to the witness following Michael Ehlert's arrest.

Based on the facts in this case it appears that a thorough pre-trial investigation must be conducted to determine the motive for the complaining witness to change his story. Massachusetts General Laws 268 § 13B states that the crime of witness intimidation requires proof that (1) an individual was a witness in a stage of a criminal proceeding, and that the defendant (2) willfully endeavored or tried to influence the witness, (3) did so by means of intimidation, force, or threats of force, or the offering of inducements, and (4) did so with the specific intent of influencing the witness. Based on Massachusetts case law, it is not necessary that charges be lodged at the time of any alleged intimidation. "Any stage of a criminal proceeding" may encompass actions committed by a defendant before the police was called or the alleged crime was reported. For example, the authorities often charge a defendant with "intimidation of a witness" when a complainant alleges that the defendant took his or her phone in an effort to prevent the reporting of a crime.

Many defendants believe that they are home free when they walk out of the courthouse on probation. However, a large number of individuals find themselves in prison due to the fact that they did not live up to the terms of their probation. If you have been served with a notice from your probation officer that you have violated the terms of your probation it is important that you have an experienced defense lawyer on your side. At a preliminary hearing the probation officer must present evidence indicating that you have in fact violated your probation. A skillful attorney will argue that the probation department failed to meet the initial threshold. During a final surrender hearing it is critical that a defendant has a prepared, persuasive and organized attorney on his or her side to prevent a defendant from being surrendered and possibly imprisoned.

Although all of the facts in this case are not known, a defendant charged with distribution of marijuana or intent to distribute marijuana in a school zone faces a mandatory sentence of two years in jail. The fact that in Massachusetts possession of under an ounce of marijuana has been decriminalized has given many teenagers a false sense of security. Although straight possession of marijuana under an ounce is not considered a criminal offense, the possession of under an ounce of marijuana with the intent to distribute and/or the distribution of under an ounce of marijuana is a criminal offense with stiff penalties. Simply passing a joint or a small amount of marijuana to a friend is considered "distribution" in Massachusetts. There is no requirement that money pass from a "seller" to a "buyer" in order for the "seller" i.e., distributor, to be charged with distribution.

In this case, the juvenile was questioned and told the authorities that he sold the contraband in Lowell Massachusetts. Depending on the circumstances, filing a motion to suppress this statement may be appropriate. In Massachusetts, the police (or anyone acting under the color of the state) cannot interrogate or question a suspect who is in custody unless he or she has been advised of the "Miranda Rights." The "Miranda Rights" basically inform a suspect that he or she does not have to speak to the police, that he or she may contact an attorney, that anything he or she says can be used against him or her in court and that if he or she cannot afford an attorney one will be appointed to him or her. In the event that the statement is suppressed, the Commonwealth's case against the juvenile for possession with intent to distribute is significantly weakened if not destroyed.

The types of factors that a finder of fact examines to determine whether a controlled substance was simply "possessed" or "possessed with intent to distribute" are the following: Whether a scale was found: Whether a large sum of money was found; Whether any cuttting implements were found such as a mirror: Whether plastic baggies were found and whether there were any admissible incriminating statements made by the defendant. The presence of any drug paraphernalia is a factor that is carefully scrutinized.

If you have been charged with possession with intent to distribute a controlled substance or distribution of a controlled substance you must have an experienced Massachusetts criminal defense attorney on your side.

If stealing were not enough to dampen the holiday season, the culprits left water faucets running causing overflow and additional damage to the building. Tenants who went to the recording studio during the early morning hours noticed dripping water from the ceiling. Investigation revealed that the building had been broken into and ransacked.

When the perpetrators are caught they may face a number of charges including breaking and entering a building in the nighttime with intent to commit a felony, malicious destruction of property over $250.00 and larceny over $250.00. If a person is convicted for breaking and entering in the nighttime with intent to commit a felony he or she faces the possibility of serving twenty years in state prison or two and one half years in jail.

In order to prove breaking and entering the Commonwealth must prove beyond a reasonable doubt that the defendant broke and entered into a building in the nighttime with intent to commit a felony. In Massachusetts the breaking and entering are considered two distinct acts. Areas that are often litigated in these types of cases are whether the defendant actually broke into the building and/or whether he or she actually entered the premises. For example, the opening of a window or door, which was partly open, further than it was before in a manner in which was intended to be used is not considered a breaking. However, going through and open window that is not intended for use as an entrance is considered a breaking.

Although the facts of this case are not all known, in the event that anyone is arrested a viable defense may be that the individual was misidentified. As in many cases when a defendant is not arrested at the scene, an experienced Massachusetts defense lawyer must examine the circumstances under which a witness identified the defendant. The lighting, the opportunity for a witness to observe the defendant and whether the identifying witness was familiar with the defendant are a few area that must be explored.

If you have been served with a temporary restraining order in Massachusetts it is important that you know all of your rights. Although a restraining order is a civil order an alleged violation can result in the issuance of a criminal complaint. Thus, it is not always in one's best interest to agree to the continuance of the order. M.G.L. Chapter 209A states that a person "suffering from abuse" by a "family or household member" may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. "Abuse" is defined by the statute as acts "(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G.L.c. 209A, § 1, as amended through St. 1996, c. 450, 232. See Commonwealth v. Gordon, 407 Mass. 340, 344-345 (1990); Wooldridge v. Hickey, 45 Mass. App. Ct. 637 638-639 (1998). In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). The Court also reads the Legislature's language in § 1 ("attempting," "placing," and "causing") as revealing an intent to limit the definition of abuse to the present tense. See United States v. Wilson, 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes"). Language in § 3 also suggests that c. 209A was designed to allow persons presently "suffering" from abuse to seek relief. Therefore, the Court concluded that G.L.c. 209A, § 1(b), focuses on preventing imminent serious physical harm, not merely responding to past abuse. Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002). If you oppose the continuance of the restraining order having an experienced Massachusetts domestic violence lawyer on your side who knows the legal standards is important.